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Surviving Spouse. Protection of Surviving Spouse at Common Law. Problem at common law = spouse not an heir. Protection of Surviving Spouse at Common Law. 1. Dower for Widow Life estate in 1/3 of the real property husband owned at death or anytime during the marriage.

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protection of surviving spouse at common law
Protection of Surviving Spouseat Common Law
  • Problem at common law = spouse not an heir
protection of surviving spouse at common law1
Protection of Surviving Spouseat Common Law
  • 1. Dower for Widow
    • Life estate in 1/3 of the real property husband owned at death or anytime during the marriage.
protection of surviving spouse at common law2
Protection of Surviving Spouseat Common Law
  • 2. Curtesy for Widower
    • Life estate in all wife’s real property if, and only if, at least one child was born to the marriage.
protection of surviving spouse at modern law1
Protection of Surviving Spouseat Modern Law
  • 2. Common Law Marital Property States -- Spouse’s right to a forced (elective share)
protection of surviving spouse at modern law2
Protection of Surviving Spouseat Modern Law
  • 3. Community Property States – Spouse’s ownership of ½ of the community property
factors used to determine surviving spouse s share
Factors used to determine surviving spouse’s share
  • Type of property – real or personal
  • Type of property – individual, separate, community, quasi-community
  • Number of children
  • Whether surviving spouse is the other parent of deceased spouse’s children